Sunday, March 25, 2012

Moore and former state Supreme Court Justice Reuben Anderson - both campaign contributors - to handle the state's litigation against BP over the Gulf oil disaster. And he apparently hires them in some open-ended arrangement where they'll put together a team of lawyers and get a cut of what the state gets, details to be worked out later.

And while he's claiming he's been voluntarily transparent with his big lawyer contracts, Hood's crack communications team appeared loath to let any of the Moore contract out of the bag. Intrepid political blogger Frank Corder of Y'all Politics broke the news in a brief blurb, but when media, including the Associated Press and Sun Herald, began calling for details, Hood was unavailable and his spokeswoman tersely refused for days to even answer yea or nay whether Moore had been hired.

Here's a snippet of email correspondence between the Sun Herald and Hood's spokeswoman which went on for days:

Spokeswoman: "... he's still out of town, and there's nothing to report. Hope you have a good weekend."

Sun Herald: "So, ‘nothing to report' means he hasn't hired Moore's firm? I'm sure you've seen there have been a couple of reports saying that recently."

Spokeswoman: "It simply means we have no answer for you right now."

Ah, the transparency and warm glow of sunshine. And get this, the last lines of the BP litigation contract place a gag order on attorneys working the case: "The Attorney General shall maintain responsibility for the public distribution of information concerning the matter. All press inquiries shall be referred to the Attorney General for comment or response."

Now, Hood's office appears to have a habit of taking journalists off its press release email list if they write things he doesn't like. But I've been off that list for years, so what the heck. From a conversation I had with some fellow journalists the other day, pretty soon there won't be anyone left to receive his "distribution of information."

Moore and Anderson are fine attorneys. But in the case of Moore, I can't think of another lawyer buddy Hood could hire that would more enrage the legislative leadership, shy of some that have been disbarred and/or jailed for judge bribing.

Hood has had some high ground to which he could cleave in the legislative "Sunshine Act of 2012" battle. It is a partisan move to strip power from the state's top, elected, legal officer and transfer it to agency bureaucrats.

But it appears he's instead stayed down in the ditch, taken off his shoe and whipped out the hammer.

A judge removed one of the two women on federal death row Friday, saying lawyers for the Iowa woman convicted in the 1993 execution-style murders of five people failed to present evidence about her troubled mental state that could have spared her from capital punishment.

In a 448-page ruling, U.S. District Judge Mark Bennett threw out Angela Johnson's death sentence, saying her defense lawyers were "alarmingly dysfunctional" during the 2005 trial that made her the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the punishment in 1976.

Attorney General Eric Holder and aides must determine within 60 days whether to appeal or continue seeking the death penalty for the 48-year-old mother of two, said assistant U.S. Attorney C.J. Williams, who prosecuted the case. If they do not appeal, there will be a trial to determine whether Johnson will be sentenced to death. In that trial, her lawyers would be allowed to present evidence about her mental health that was omitted in 2005. If they decline to seek the death penalty, Bennett could sentence Johnson to life in prison without parole.

Bennett's ruling doesn't throw out her convictions — he said evidence of her guilt was overwhelming. Johnson and boyfriend Dustin Honken committed the murders to thwart a federal investigation that threatened to end Honken's reign as one of the Midwest's largest methamphetamine kingpins, and buried the bodies to cover them up.

After separate trials, jurors sentenced Honken to death for the two children's murders while Johnson was sentenced to death on four counts. Both were to die by lethal injection.

The bodies of the victims — drug dealers-turned-government witnesses Terry DeGeus and Greg Nicholson; Nicholson's girlfriend, Lori Duncan; and Duncan's daughters, Kandi, 10, and Amber, 6 — were found in shallow graves near Mason City in 2000. They were discovered after Johnson, serving time on drug charges, sketched out a locator map to a jailhouse informant.

Prosecutors said Johnson posed as a saleswoman to gain access to Duncan's home in 1993, days before Honken was to plead guilty to drug charges. Honken and Johnson forced Nicholson to make a videotaped statement exonerating Honken. Afterward, they took him, Duncan and her children to a field and shot all of them in the back of the head at close range.

A month later, Johnson lured DeGeus, a former boyfriend, to a secluded location where Honken shot him several times and beat him with a baseball bat.

Bennett said that he understands his ruling will upset victims' families, but Johnson's defense was so riddled with missteps that her rights were violated.

"I believe that I have done my duty, in light of what is required by the Constitution — the foundational document of our Nation's enduring freedoms, including the right not to be put to death when trial counsel's performance was so grossly constitutionally inadequate," he wrote.

During the penalty phase of Johnson's trial, Bennett said defense lawyers failed to present expert testimony about her mental health at the time of the murders that could have helped explain her involvement to jurors. He said they should have presented evidence about the impact of serious brain impairments, personality disorders and her prior methamphetamine use.

Bennett said defense lawyers also failed to present evidence that could have undercut the prosecution's claim that she participated in DeGeus' killing out of revenge, because of their prior relationship's abusive nature. He said they should have had experts argue she was suffering from battered woman's syndrome and wouldn't have wanted him dead.

At trial, her attorneys argued the government's case was built entirely on circumstantial evidence and that Johnson was ignorant of Honken's intent to kill. They urged jurors to sentence her to life in prison, not death.

Iowa does not have the death penalty, and Bennett said few lawyers in the state had expertise in capital punishment. He said he tried to assemble "dream team" of lawyers for Johnson — including Alfred Willett, of Cedar Rapids; Patrick Berrigan of Kansas City, Mo.; and Dean Stowers of Des Moines — but they performed poorly.

"I'm happy she's going to get a new shot at things because she deserves it," he said.

Bennett, appointed to the bench by President Bill Clinton, has acknowledged his personal opposition to the death penalty. In a 2006 speech about the two capital murder cases, he said he set aside his personal beliefs in the interest of fairness. But he added he had "grave concerns" the death penalty could be applied unfairly.

Johnson is at a medical center for female inmates in Fort Worth, Texas, while Honken is in prison in Terre Haute, Ind.

Saturday, March 24, 2012

The State Bar president envisions developing a website that will connect lawyers looking for jobs with communities short on legal representation to combat the shortage of attorneys in South Dakota's rural communities.

The website is part of an ongoing recruitment initiative called Project Rural Practice, developed to fill the gaps as older attorneys retire with no one to take over their businesses, Bar President Pat Goetzinger told The Associated Press. Sixty-five percent of the state's 1,861 attorneys are in four cities: Sioux Falls, Rapid City, Aberdeen and Pierre, Bar data shows.

"I see the website being particularly useful in the match side of it," Goetzinger said in a Wednesday interview. "The communities can plug in and have links ... so that a lawyer (who's) looking into that community can see what that community has to offer."

People living in rural areas sometimes have to travel further for legal advice, meaning rural cases are slow to be resolved. Cash-strapped communities are spending more money to bring in lawyers for board and commission meetings, while businesses and estates that used to turn to one person for legal guidance have to use firms with multiple specialists, making the process less personal.

Goetzinger said the website, which would include resources on starting and maintaining a rural practice, must first be approved by the group's commissioners, but he anticipates it to be operational by the end of the summer or early fall. Task force members are working on a mockup.

Thomas Geu, interim dean at The University of South Dakota School of Law and a member of the task force, said some lawyers prefer to practice in rural areas because of the quality of life. But the countrywide urban sprawl means fewer law students are coming from rural areas, and many have little knowledge of _ or desire to find out _ what small-town life is like.

He's hoping the Rural Practice initiative and website can help change that.

Matching community needs with available lawyers is "one of the key components to deliver on some of the goals of Project Rural Practice," Geu said.

The Project Rural Practice task force is next scheduled to meet April 10 in Howard. Goetzinger said he is planning a dinner for April 9 that will recognize the five active Bar lawyers in South Dakota who have practiced for 60 years or more.

Two recent U.S. Supreme Court rulings on plea bargains will have a large impact on the criminal justice system, a local law professor said Thursday.

"I think these are big cases and they'll have as big effect as any Supreme Court case," said Ron Wright, a professor at Wake Forest University School of Law.

In two separate cases this week, a divided Supreme Court ruled that defendants have a constitutional right to effective representation by their attorneys in plea negotiations. The court said criminal defense lawyers should be expected to do a competent job in advising and informing their clients when prosecutors present plea offers.

"This will not bring the system to a halt," Wright said. "I don't think it will shut things down."

But criminal defense lawyers might have to file extra paperwork or do other things to make sure their clients know about plea offers and get the right legal advice, he said.

"This could affect every defendant in the system," he said.

About 97 percent of federal convictions and 94 percent of state convictions in 2009 were the result of guilty pleas, according to the U.S. Department of Justice.

In one of the cases that went before the Supreme Court, Galin Edward Frye's attorney failed to tell him about plea bargain offers from Missouri before he pleaded guilty to driving with a revoked license. In the other case, Anthony Cooper rejected a plea offer after getting bad legal advice from his attorney, who told Cooper that prosecutors could not prove an element of the crime. Cooper was sentenced to 30 years instead of the seven years he could have gotten under the plea offer.

"That guy had no business practicing criminal law if he didn't know better than that," said Pete Clary, Forsyth County's public defender, about Cooper's attorney.

Clary said criminal defense lawyers already have an ethical obligation to take all plea offers to their clients and provide legal advice on whether they should take the offers.

More lawyers might call for status conferences in Forsyth Superior Court so that a defendant can hear the details of a plea offer in open court, Clary said.

If it's on the record, the defendant cannot go back and say that his attorney didn't tell him or her about a plea offer, he said.

David Freedman, a criminal defense lawyer, said the ruling means that lawyers will be under extra scrutiny to make sure they inform their clients about plea offers. He said more defendants could be brought into court to openly accept or reject a plea bargain.

"That will be a more common course as people start to understand the effect of these cases so there will be no question that the attorney conveyed the plea negotiation and the defendant understood the plea," he said.

Forsyth County District Attorney Jim O'Neill said he strives to make sure every defendant facing criminal charges knows about any plea offers. Plea offers are written down and placed in the public court file, he said.

"My office always takes great care to see to it that a person charged with a serious felony is informed on the record in open court as to what exactly the plea offer available is," he said. "That way, a defendant can make an informed, rational decision as to what inherent risks he or she will be exposed to during the course of a jury trial."

Tuesday, March 20, 2012

Celebrity attorney Mark Geragos and his law partner have settled a lawsuit for $2.5 million against the owner of a defunct charter jet company that secretly recorded the men and Michael Jackson as they flew from Las Vegas to Santa Barbara for the pop star to turn himself in on child molestation charges.

The amount awarded to Geragos and partner Pat Harris will be difficult to collect because defendant Jeffrey Borer is insolvent, his attorney Lloyd Hirschbaum said. The agreement was reached Friday, the last court day before a re-trial in the case was scheduled to begin to determine how much Geragos and Harris were owed.

Borer attempted to sell the video, which contains no audio, of the flight to media outlets after Jackson's surrender. Geragos, Harris and their attorney Brian Kabateck have argued that the lawyers had an expectation of privacy on the private jet that flew them and Jackson from Las Vegas to Santa Barbara in November 2003. The video, which has never been released, also violated the attorney-client privilege, the said.

An appeals court in 2010 threw out a judge's $20 million award to the attorneys and instead offered them $750,000.

Geragos' attorney Brian Kabateck said he was pleased with the settlement sum and would work vigorously to collect it. He said the amount will send a strong message.

Borer and an associate pleaded guilty to conspiracy two years ago for videotaping Jackson and his lawyers as they flew to the pop star's surrender on molestation charges. A jury later acquitted Jackson of 14 charges in the case.

Hirschbaum argued Monday that Geragos didn't have any provable damages, but the settlement avoided a three to four day retrial.

Geragos, Harris and Jackson filed the invasion-of-privacy suit against Borer and XtraJet in November 2003. Jackson dropped out as a plaintiff in April 2005.

A Seattle lawyer who is defending an Army staff sergeant suspected of killing 16 Afghans, including nine children, met Monday with the soldier for the first time at Fort Leavenworth, a conversation the attorney described as emotional.

A Seattle lawyer who is defending an Army staff sergeant suspected of killing 16 Afghans, including nine children, met Monday with the soldier for the first time at Fort Leavenworth, a conversation the attorney described as emotional.

Lawyer John Henry Browne said he met for more than three hours with Robert Bales, a 10-year Army veteran who is being held in an isolated cell at the military prison.

"What's going on on the ground in Afghanistan, you read about it, I read about it, but it's totally different when you hear about it from somebody who's been there," Browne told The Associated Press by telephone during a lunch break. "It's just really emotional."

Bales, 38, and Browne are expected to meet again Monday afternoon.

Bales has not been charged yet in the March 11 shootings, which have endangered relations between the U.S. and Afghanistan and threatened to upend American policy over the decade-old war. Formal charges are expected to be filed within a week.

Post spokeswoman Rebecca Steed said earlier that Bales would be able to meet Browne in what is described as a privileged visit. Along with medical visits, such meetings are generally more private than others conducted in the prison.

Bales is "already being integrated into the normal pre-trial confinement routine," Steed said.

That includes recreation, meals and cleaning the area where he is being housed. Steed said once his meetings with his attorney are complete later in the week, Bales will resume the normal integration process.

His day begins at 5 a.m., with a meal at 5:15. Then it's back to his cell and then to any scheduled meetings with medical, dental or mental health professionals. This is the time he also would be meeting with Browne.

People in pre-trial confinement eat separate from the general population for all meals in the same dining hall. Bales is being held in an area with about a dozen other service members who are awaiting the legal process, Steed said.

Among those being held at Fort Leavenworth are Pfc. Bradley Manning, charged in the WikiLeaks case, and Sgt. John Russell, who faces charges in the shooting deaths of five service members at a combat stress clinic in Baghdad.

If the case goes to court, the trial will be held in the United States, said a legal expert with the U.S. military familiar with the investigation who spoke on condition of anonymity to discuss the case.

That expert said charges were still being decided and that the location for any trial had not yet been determined. If the suspect is brought to trial, it is possible that Afghan witnesses and victims would be flown to the United States to participate, he said.

Military lawyers say once attorneys involved in the initial investigation of an alleged crime involving a service member have what they believe to be a solid understanding of what happened and are satisfied with the evidence collected, they draft charges and present them to a commander. That person then makes a judgment on whether there is probable cause to believe that an offense was committed and that the accused committed it.

That commander then "prefers" the charges to a convening authority, who typically is the commander of the brigade to which the accused is assigned but could be of higher rank.

Bales' defense team said in a statement late Saturday that "it is too early to determine what factors may have played into this incident and the defense team looks forward to reviewing the evidence, examining all of Sergeant Bales' medical and personnel records, and interviewing witnesses."

The lawyers' statement also said Bales' family was "stunned in the face of this tragedy, but they stand behind the man they know as a devoted husband, father and dedicated member of the armed services."

Military officials have said that Bales, after drinking on a southern Afghanistan base, crept away March 11 to two villages overnight, shooting his victims and setting many of them on fire. Nine of the 16 killed were children and 11 belonged to one family.

Court records and interviews in recent days have revealed that Bales had a string of commendations for good conduct after four tours in Iraq and Afghanistan. But he also faced a number of troubles in recent years: a Florida investment job went sour, his Seattle-area home was condemned as he struggled to make payments on another, and he failed to get a recent promotion.

At their meeting Monday, Browne said, Bales clarified one story: It was two days before the Afghan shootings when one of Bales' friends, another soldier, had his leg blown off by a roadside bomb. Browne said Bales didn't witness the explosion but saw the aftermath.

The details of the blast could not be immediately confirmed. An earlier account from Bales' family, provided by Browne, had the explosion happening the day before the shooting rampage.

Legal troubles included charges that he assaulted a girlfriend and, in a hit-and-run accident, ran bleeding in military clothes into the woods, court records show. He told police he fell asleep at the wheel and paid a fine to get the charges dismissed, the records show.

Browne, 65, has represented clients ranging from serial killer Ted Bundy to Colton Harris-Moore, known as the "Barefoot Bandit." He has said he has handled only three or four military cases. Bales will also have at least one military lawyer.

Tall and stylish, Browne has been a prominent figure in Washington state legal circles since the 1970s, known equally for his zeal in representing his clients and his flair before television cameras.

By Gene Johnson and John Milburn, The Associated Press

Source: The Seattle Times Newspaper

Also contributing were Associated Press writers Manuel Valdes in Seattle and Deb Riechmann in Kabul, Afghanistan. Johnson reported from Seattle.

Saturday, March 17, 2012

According to a recent Indiana State Bar Association's Legal Ethics Committee finding, it is "likely not appropriate for a lawyer licensed in Indiana to advertise through a group coupon program."

In part, the problem arises when a non-attorney, in this case the deals provider, is allowed to create an attorney-client relationship.

The guidelines and Rules of Professional Conduct provide that the creation and establishment of an attorney-client relationship is the non-delegable duty of the lawyer.

Simply stated an attorney is not allowed to use a middle man to help drum up clients. There was also an issue of the handling of fees.

"A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred."

The opinion found that allowing a coupon company to handle the money and dole it out at its discretion was a violation.

Indiana is not the only state that either has such guidelines for attorneys in place or is looking into implementing such guidelines. A year ago the Lawyerist, a law practice blog providing advice on law firm marketing and related topics, said findings varied from state to state.

North Carolina quickly put the kibosh on plans for advertising legal services on Groupon, stating in a that the site's fee "is a percentage of the amount actually paid to the lawyer and appears to constitute revenue sharing with a nonlawyer." Missouri, however, welcomed Groupon with open arms, clearing the way for lawyers in the state to use the site as a way to obtain new clients.

Now a year later the Lawyerist says the idea… and acceptance of attorneys using daily deal sites like Groupon is gaining traction.

Lawyers can use daily deal sites, like Groupon, in North Carolina, South Carolina, and New York, according to ethics opinions in those states. New York was the third state to issue an opinion addressing the potential conflict between Groupon which takes a percentage of every transaction, and rules prohibiting fee sharing or paid referrals.

In 2010, a St. Louis estate planning attorney, Craig S. Redler offered a deal on Groupon after clearing it with the Missouri Bar Association. The deal consisted of 87 percent off on a will and power of attorney. Ridler's Groupon promotion saw a profit and some of the clients returned and even referred new clients.

Early this year, Debra Bruce of Solo Practice University asked Redler if he'd do another deal promotion.

"Probably not," he admitted, but not because of the clients. And not because of Groupon. He just wouldn't want to experience all the brouhaha from the legal community again. Besides the flurry of activity from new clients, Redler's office was inundated with about 150 phone calls and emails from lawyers wanting to know how it worked. On top of that, some of the online commentary was not very charitable towards him. (Lawyers, please don't contact him as a result of this post. He doesn't have time for responding.)

It wasn't that long ago that attorneys were prohibited from advertising in any form. They were only allowed a tiny text listing in the yellow pages.

"…all forms of self-promotion "offend the traditions and lower the tone of our profession and are reprehensible."

Obviously times are changing, but just how much and how fast they change is most likely going to be up to the individual states. Will daily deals ever be a good fit for the legal profession? Only time will tell.

Former presidential candidate John Edwards got his wish Thursday and is changing his defense team ahead of his criminal trial on charges of campaign finance violations, hiring the same attorneys who once helped his mistress in a lawsuit over the couple’s alleged sex tape.

The former U.S. senator from North Carolina testified under oath that he understood a jury might puzzle over the fact that lawyers Alan Duncan and Allison Van Laningham would be representing him after previously representing his mistress, Rielle Hunter.

Edwards faces charges that he broke federal campaign finance laws, allegedly using nearly $1 million from two wealthy donors to hide the pregnant mistress and prevent a scandal from erupting as he campaigned for the White House in 2008. He has pleaded not guilty.

U.S. District Court Judge Catherine Eagles told Edwards that shaking up his defense team was likely causing him stress, something the former senator's doctor said in a private letter to the judge Edwards should avoid to protect his health. The judge asked Edwards whether he was taking any narcotics or other medications that might fog his judgment before trial.

"I'm taking a bunch of medication. No narcotics, to answer that question," said Edwards, who appeared sharp and relaxed. "If I have memory problems, they're not because of the medicine."

Edwards was a successful trial attorney before winning a U.S. Senate seat in his first political campaign, becoming the 2004 Democratic vice presidential nominee and then running for the White House in 2007 and 2008. He gave no immediate reason for hiring the lawyers as his trial is scheduled to open in Eagles' courtroom on April 12.

Federal prosecutors said they've made no final decisions, but chances are good they will call Hunter as a witness at the trial. Hunter was given immunity from prosecution for her testimony to a grand jury in 2009.

Prosecutors handed Eagles a copy of the immunity deal Thursday, which the judge scanned and noted the government "didn't agree not to prosecute" on all issues.

Based on what Hunter has told them so far, prosecutors said in a recent court filing they expect she will testify that Edwards was aware of funds that were provided as part of what they said was a scheme designed to conceal their affair and the pregnancy from the media and the public.

They also said she indicated that Edwards was aware of and condoned the role of many of the participants in the alleged scheme.

Duncan and Van Laningham represented Hunter in her lawsuit against former Edwards aide Andrew Young. That case ended last month with a settlement that ordered all copies of the alleged sex tape destroyed.

Duncan and Van Laningham have not represented Hunter on criminal issues linked to the Edwards case.

Hunter signed a waiver dropping any objections to Edwards hiring the new lawyers, Van Laningham said.

Eagles decided that if the government calls Hunter to testify, defense cross-examination would have to be handled by other Edwards attorneys.

"It just minimizes the possibility that a former relationship is discussed in front of the jury," the judge said. "I want to be sure we don't have any problems at trial," the judge said.

Earlier, federal prosecutor Robert Higdon raised questions about whether Duncan and Van Laningham would have divided loyalties if testimony from Hunter and Edwards conflicted, or whether they could use insider knowledge of Hunter.

Prosecutors previously alleged that another Edwards defense lawyer, Abbe Lowell, had a potential conflict of interest because he had previously represented Fred Baron, a former Edwards campaign finance chairman. Baron has since died, but Lowell had also represented his wife, Lisa Blue, last year before a grand jury investigating Edwards.

Eagles ruled Lowell could remain on the defense team but could not cross-examine Blue if she is called to the witness stand.

Edwards' defense team has seen significant turnover since his arrest in June.

Former White House Counsel Gregory Craig and former Associate White House Counsel Cliff Sloan, who began representing Edwards in March 2010, resigned in August.

Raleigh defense lawyer Wade Smith withdrew in October after federal prosecutors suggested he had a conflict of interest because he might be called to testify about a 2009 conversation he had with a financial adviser for Bunny Mellon.

Authorities say the 101-year-old socialite provided much of the money used to support Hunter.

Tuesday, March 13, 2012

Attorneys for co-defendants accused of theft are asking that the cases be dismissed because of speedy trial stipulations.

James Golden, 26, and Joseph Stoll, 27, both of York, have been accused of stealing property from Pioneer Hi-Bred International in York County.

In 2010, a utility trailer was found to be missing from the Pioneer Seed location along Highway 34.

Seward County investigators told an individual at Pioneer that they had recovered the trailer and asked if the company was familiar with the two suspects.

Pioneer officials said neither was employed by the company and that they had no permission to take the trailer.

The Seward County Sheriff's Department received information that the stolen trailer was at a specific location in the rural area of that county.

Upon locating the stolen trailer, they allegedly contacted Golden who they said admitted to deputies in a written statement that he and Stoll had taken the trailer.

The trailer was confirmed to be the one taken from Pioneer.

Both men appeared in York County District Court this past week.

Stoll's attorney, Steve Fillman, asked Judge Jeffre Cheuvront to dismiss the case, "based on the speedy trial timeline. This is a very simple dismissal. We're 2 ? years out on this case, so it's a no-brainer to dismiss."

Special prosecutor, Jennifer Ladman, said she disagreed with dismissal.

Judge Cheuvvront said Judge Alan Gless intended to rule on a motion to suppress and other requests, refusing to just dismiss the charges.

"It's clear that this case is months behind," Fillman continued. "So it's like a double violation because it's been over six months since we filed on the issue of speedy trial."

Judge Gless has been on temporary medical leave since December, 2011.

York County Public Defender Nancy Waldron also noted that when these cases started, Tim Sieh was the county attorney and Sam Bethune was the public defender.

Since then, there's been two changes for the county attorney position and one change in the public defender office. She also noted that the current county attorney could not prosecute the case because of conflicts of interest, so a special prosecutor had to be appointed.

"We are asking that this case be dismissed," Waldron said, mirroring Fillman.

The Rev. Johnny Jeremiah, a self-proclaimed community activist who is quick to tell anyone who will listen that he is an ex-convict gone straight, is again a wanted man.

The reverend, whose real name is Johnny Binder, can regularly be found associating with attorneys and their clients outside Harris County courtrooms.

However, prosecutors Monday said Binder, 58, is doing more than working with the downtrodden and their lawyers. He is accused of soliciting defendants for an attorney, a third-degree felony called barratry.

It is illegal for lawyers and so-called "runners" to directly solicit clients. General advertising is legal.

Binder, who has not been arrested, faces two to 10 years in prison if he's convicted.

He is accused of persuading a 28-year-old suspect to hire him and attorney Tiffany Mooney to defend against a drug possession charge, according to court records.

Text messages

In text conversations from Mooney's phone to a phone number listed on Binder's business cards, Mooney states: "You get 50 percent of all monies."

A return text four minutes later reads: "you are loosing (sic) your mind stop talking about money on this phone."

Prosecutors allege Binder and Mooney are the texters, and they are talking about splitting fees for bringing in new clients.

Binder was with Mooney when the two approached the young man in the courthouse and initiated the conversation, ultimately persuading him to pay $1,000 for representation, court records show.

The defendant dropped $900 off at Binder's home. He appeared in court Feb. 16 and told a state district judge that Binder was his lawyer.

Because Binder talks to everyone at the courthouse and is dependably dressed in colorful three-piece suits with an immaculate baseball cap that matches the suit, he is well-known at the courthouse.

When prosecutors heard a defendant say Binder was his lawyer, they took notice because his past also is well-known.

He appeared in a 1991 U.S. News & World Report article titled "The Men Who Created Crack" and was in and out of prison since the 1970s.

He has stayed out of trouble for more than 10 years working, he says, to help others.

After the defendant claimed Binder was his lawyer, the Harris County District Attorney's office began investigating.

Mooney was arrested Feb. 24 on a theft charge, accused of stealing $18,000 from a client in a different case.

After her arrest, investigators analyzed her phone to find the texts.

In text messages on her phone, prosecutors allege, Mooney was splitting money 50/50 with Binder, an arrangement that is prohibited by state bar rules. Lawyers cannot "split fees" with non-lawyers.

Mooney also was charged with barratry on March 6, accused of paying Binder to solicit clients.

No response

Calls to Mooney's attorney were not returned late Monday. Her office phone number, listed in Texas Bar records, was disconnected.

Calls to Binder's number were not returned.

"Defendants are entitled to an attorney of their choice and not be pressured," said Assistant Harris County District Attorney Wendy Baker. "They have a right to be free of solicitation at the courthouse."

Baker said prospective victims are asked to call the District Attorney's Financial Crimes division at 713-755-8333.

Monday, March 12, 2012

Paul Clement used to argue for the federal government's power until he started arguing against it.

But he's no flip-flopping political candidate; he's a lawyer. Changes like this are part of his job.

Clement is playing a key role in three politically charged Supreme Court cases in which Republican-led states object to Obama administration policies or federal laws on health care, immigration and redrawing political boundaries.

In the biggest of those, the 45-year-old law school acquaintance of President Barack Obama will be trying to sink Obama's health care overhaul.

Not that long ago, Clement would regularly stand before the justices and defend even the most aggressive uses of federal power, making his case without written notes and parrying questions with an easy banter.

He argued for the Bush administration's policy on detaining suspected terrorists, a federal law outlawing a medical procedure called "partial-birth abortion" by opponents, the McCain-Feingold law aimed at limiting the influence of money in politics and a federal ban on the use of marijuana for medical purposes.

Clement was President George W. Bush's top Supreme Court lawyer, the solicitor general, the last government job on his impeccable conservative resume. He was a law clerk for Justice Antonin Scalia, then worked for John Ashcroft, both when Ashcroft was a senator and attorney general.

If a Republican wins the White House, expect to find Clement among the top potential Supreme Court nominees, said Curt Levey, who heads the conservative Committee for Justice. "It's unimaginable that any Republican president wouldn't have him on their short list."

His recent run of cases hasn't hurt his chances.

"There's no doubt that Paul has become the leading advocate for the most deeply conservative causes in the law. That is a reputation he has worked hard to earn," said David Frederick, a Supreme Court lawyer who often represents consumers.

Clement is scheduled to argue seven cases at the high court this term, roughly 10 percent of the total and a staggering figure for a lawyer in private practice. Supreme Court lawyer Thomas Goldstein jokingly introduced Clement at a recent event as having "the distinction of arguing every case in the Supreme Court this term, or nearly so."

The last of those will be a defense of Arizona's immigration law in the face of a challenge from the White House.

He already scored at least a partial victory when the court threw out interim Texas electoral maps that were drawn by federal judges and opposed by the Republicans Clement represented.

But the centerpiece of Clement's work, and of the high court term, is the election-year fight over the law that is intended to extend health care coverage to more than 30 million people. Clement will carry the bulk of the argument among several attorneys with clients opposing the law.

Representing Florida and 25 other states, Clement's central argument is that Congress went too far in requiring nearly every American to purchase insurance or pay a penalty.

"There have been a lot of crises in this country over the years, economic, other, where Congress might have thought that forcing individuals to purchase a particular good or a particular service might have been a useful means of government action. But the government never did," he said.

Born and reared in Cedarburg, Wis., Clement was a year behind Obama at Harvard Law School and worked under him on the Harvard Law Review. He was the youngest solicitor general, at 38, in 115 years.

Clement's unassuming, buttoned-down image provides little hint of his fondness for alternative rock bands he sometimes sees at Washington's 9:30 Club. He lives in suburban Virginia with his wife and three sons.

He has maintained a heavy workload despite an upheaval in his professional life that took him from the 800-lawyer King & Spalding firm to tiny Bancroft LLC. Atlanta-based King & Spalding spent a reported $5 million to lure Clement after he left government in 2008. Clement won't confirm the figure, but he does not dispute it.

Clement easily attracted deep-pocketed clients, including National Football League owners in their dispute with players.

But his representation of House Republicans in support of the Defense of Marriage Act prompted an internal struggle at the firm. The Obama administration is no longer defending the 1996 law that defines marriage as a union between a man and woman, and prohibits the government from granting benefits to same-sex couples.

King & Spalding eventually withdrew from the case, leaving Clement in the uncomfortable position of having to quit his clients or the firm. He chose the latter, which drew criticism from some gay rights groups but praise from lawyers across the political spectrum, including Justice Elena Kagan, an Obama nominee to the Supreme Court.

At Georgetown University last year, Kagan spoke of Clement's "integrity, professionalism and honor" and said Clement's critics "misunderstand the traditions and ethics of the legal profession."

Clement himself says the experience bolstered his view that he would not choose clients out of fear of taking on unpopular causes. "It seems like a formula for a really uninteresting legal practice," he said.

And despite his ties to Republicans, Clement insists that when he stands before any court, "you have to really buy into the notion that positions are taken on behalf of a client. They're not your positions."

He notes that he has been on the liberal side sometimes — arguing for California prison inmates seeking better medical and mental health care and seeking higher fees for lawyers who won changes in Georgia's foster care program.

Still, when he left King & Spalding, he, along with many of his clients, ended up at Bancroft, run by Harvard law classmate Viet Dinh. The 13-lawyer firm is heavy with former Bush administration officials, including Dinh, and law clerks to Chief Justice John Roberts.

When Lauren entered foster care at age 16, she was too scared to go to the court hearings that were deciding her future. She was wary of the judge and struggled to navigate the complex legal system of dependency court on top of adjusting to life in a group home.

But Lauren’s attorney eventually persuaded her to attend, convincing her of how important it was for the judge to hear about Lauren’s experiences in her own words.

Having legal help like that is uncommon for the nation’s more than 400,000 foster children. Massachusetts, Connecticut, and more than a dozen other states require that foster children have appointed attorneys. But compliance is sporadic because of shrinking budgets. And Florida has a pilot program that advocates are pushing other states to try.

“These are abused and neglected kids, for whom the most life-altering decisions will be made in juvenile courts across the country … and yet so many kids are denied this most basic right every day," said attorney Ira Lustbader, associate director for the advocacy group Children’s Rights.

Lauren was appointed an attorney a few years ago after a federal court judge ruled - in response to a lawsuit - that foster children in two metropolitan Atlanta counties, DeKalb and Fulton, are entitled to be represented. It’s a ruling that supporters, including the American Bar Association, are using to build a national campaign for children to have legal counsel.

When Lauren fought with another girl and was charged simple battery and assault in adult criminal court, her attorney, Aviance Jenkins, was there to give the judge details about Lauren’s history in foster care in DeKalb County. The charges were eventually dropped.

“It’s important to let (foster children) know they have a voice and there’s someone willing to think on their behalf," said Lauren, who is now 18. Her lawyer only gave her first name to protect her from the stigma others sometimes associate with being in foster care.

In the past five years, DeKalb County grew from two lawyers representing foster children to a department with 11 attorneys, plus investigators and paralegals. The average caseload before the judge’s ruling was about 850. Now, it is now between 550 and 650 and every child is seen four to six times a year. The average amount of time children in the county spend in foster care has dropped from nine months to less than three, according to statistics given by its director.

Fulton County went from four lawyers for 2,000 kids to about 17 lawyers.

Florida and other states say children with attorneys do move through the system faster, which could save money. The U.S. Department of Health and Human Services recently awarded a $5 million grant to the University of Michigan to study how to better connect foster children with legal help. The American Bar Association recently wrote legislation and is urging lawmakers in several states, including Florida, to require attorneys for all foster children.

A pilot program in Palm Beach County, Fla., showed children with effective counsel in dependency cases found permanent homes at about twice the rate of unrepresented children, according to a 2008 study by Chapin Hall, the University of Chicago’s research arm. That program, which has 14 attorneys with an average caseload of 35 kids, works with about 800 foster children a year, costing taxpayers about $1.7 million. But advocates say that’s less than what the state would pay for extended stays in foster care. Florida spends between $150 to $200 a day to care for each child.

Mississippi and South Carolina require attorneys for children, but experts say the law is rarely followed. The decision is at the judge’s discretion in a dozen other states including Indiana and Maine, according to a study by First Star and the Children’s Advocacy Institute.

And even if states were forced - similar to the Georgia counties - to provide attorneys, it still could be a waste of money unless strict oversight ensures the cases aren’t assigned to underpaid, fledgling attorneys, advocates say. In some states, attorneys are so overloaded that they don’t have time to meet with the children they represent.

“I knew personally what it was like to represent 1,000 children a year," said Trenny Stovall, director of the DeKalb Child Advocacy Center. She was an attorney in Fulton County, Ga., before more lawyers were added.

“You woke up every day and prayed that there was nothing on the news about a child that you may or may not have ever seen but were responsible for representing," Stovall said.

Some say that ideally, foster children should have both an attorney and a court-appointed volunteer - which are common in most states - to help.

Attorneys can focus on preparing for hearings and filing motions. It would allow volunteers to spend more time with children, assessing the foster homes, becoming a trusted confidante and passing that information to the attorney.

“It would be an unaffordable and unreasonable expectation that a lawyer could be available on the phone, on call or go visit whenever a child needs you," said Michael Piraino, chief executive officer of Seattle-based Court Appointed Special Advocate Association. The program has over 70,000 volunteers nationally and represents about 240,000 foster children. Volunteers typically deal with three children.

Florida and North Carolina require both the court-appointed volunteer and the volunteer’s attorney work on cases - but such requirements are rare and some critics say there isn’t enough money for both.

Advocates are also pushing attorneys to take foster kids’ cases as pro bono work. In Philadelphia, more than 300 attorneys handle cases for about 900 foster kids a year for free at the Support Center for Child Advocates.

Saturday, March 10, 2012

The operator of a Utah coal mine where a 2007 collapse led to the deaths of nine people agreed on Friday to plead guilty to two misdemeanor criminal charges and pay a $500,000 fine.

Six miners died at Crandall Canyon in central Utah in the August 2007 collapse so powerful that it initially registered as a 3.9-magnitude earthquake. Another cave-in 10 days later killed two rescuers and a federal inspector. The operation was eventually called off after drilling into the mountain found no sign of the trapped men. Their bodies remain deep in the mine's catacombs.

In documents filed in federal court in Salt Lake City Friday, attorneys for Genwal Resources Inc. noted that while it agreed to plead guilty to two counts of violating mandatory health and safety standards and pay the fine, the company can withdraw the agreement should the court not accept the plea.

The company still maintains it's mine was safe but said the plea agreement "avoids Genwal putting its former employees, their families, and members of the community at large through the ordeal of reliving the tragic events," according to a statement Friday from company lawyers.

"Significantly, the agreement reflects the lack of evidence that any conduct by the company caused the accidents," the statement said.

Genwal, based in Pepper Pike, Ohio, is an affiliate of Murray Energy Corp.

U.S. Attorney David B. Barlow said the charges support their case. According to the two counts filed Friday, Genwal "willfully violated a mandatory health and safety standard" by failing to report the initial accident to federal authorities within 15 minutes. The second charges the company violated approved roof control plans.

"These are the charges that we felt we could prove beyond a reasonable doubt," Barlow said.

Relatives of the victims only heard about the charges Friday morning, and were surprised because they had previously been told there wouldn't be any charges filed, said Alan Mortensen, an attorney representing eight of the families.

While there were mixed reactions, Mortensen said Genwal's guilty plea brings some closure.

"It put Genwal in a position where they had to admit there were willful violations," Mortensen said.

However, he added, the company's steadfast denial of fault "shows a continuing pattern of them not taking responsibility. It's very arrogant and unapologetic."

The company and its insurers had previously settled with family members of the dead miners or rescuers, but the terms of that agreement were never disclosed publicly. Lawyers on both sides have said it exceeded the more than $20 million paid to families of 27 victims of a 1984 fire at the closed Wilberg mine in the same Utah coal district.

The method of mining used at the Genwal site where the deadly collapse occurred has a history of being disproportionately deadly, according to federal safety studies.

The Crandall Canyon mine collapse happened while miners were engaged in a method called "retreat mining," in which pillars of coal are used to hold up an area of the mine's roof. When that area is completely mined, the company pulls the pillar and grabs the useful coal, causing an intentional collapse.

Tony Oppegard, a former top federal and state of Kentucky mine safety official who is now a private attorney in Lexington, Ky., has called the technique "the most dangerous type of mining there is."

According to the American Society of Safety Engineers, retreat mining requires very precise planning and sequencing to ensure roof stability while the pillars supporting the roof are removed.

The reason the practice is used is that it pays off: The last bit of coal taken from pillars is pure profit, Oppegard said. Plus, if someone violates rules during pillar removal and there is a collapse, the evidence of rule violations are gone, he added.

Retreat pillar mining is one of the biggest causes of mine roof collapse deaths, according to studies done by the National Institutes of Occupational Safety and Health.

"We recognize that nothing we can do will ever bring back the miners who perished, restore the health of those who were injured during the rescue, or erase the nightmares that still haunt those who were firsthand witnesses to these tragedies," Barlow said. "It is this office's intent that these charges send the message to mining companies everywhere: obey the safety laws."

The estimated $7.8 billion settlement reached last week between BP Plc and attorneys for victims of the Gulf of Mexico oil spill left many details unresolved, but at least one thing looks like a sure bet.

The lawyers are gearing up for a fee fight.

At the moment, there is nothing yet to battle over. It is unknown how many plaintiffs will participate in the deal and what their claims are worth.

But with the pot for lawyers likely to reach into the hundreds of millions of dollars, two distinct groups of attorneys are positioned to lock horns.

One set is the lawyers that negotiated the deal with BP. These attorneys are seeking to allay fears that the fees will come out of the pocket of claimants. Meanwhile, the other faction - which did not take part in the settlement talks and which has been pursuing claims for clients outside of court - is concerned the money will go to lawyers who do not deserve it. The lawyers in the second faction have been pursuing claims through the Gulf Coast Claims Facility which is backed by a $20 billion trust.

"That antagonism seems to be very strong and will probably continue," said Edward Sherman, a professor at Tulane University Law School in New Orleans.

The feud actually dates to 2010, when BP set up the $20 billion trust, administered by mediator Kenneth Feinberg, to compensate victims from the spill. The point was to allow victims to settle claims quickly without the costs and risk associated with litigation. To date, the Gulf Coast Claims Facility has paid out about $6.1 billion, and resolved more than 220,000 claims.

But many victims did not want just a quick payout. They wanted their day in court and chose to join a massive lawsuit against BP and its drilling partners.

As is typical in such cases, the presiding judge appointed a Plaintiffs' Steering Committee of about two dozen lawyers to gather evidence and prepare witnesses on behalf of the plaintiffs. Given the lucrative nature of leading massive litigation - attorneys in leadership positions can collect between about 5 percent and 30 percent of a settlement's value - there was fierce jockeying for the seats.

Some lawyers who were not picked grumbled that the process was unfair, but eventually began recruiting clients to appear before the Feinberg facility.

Parallel tracks

The two factions - the Steering Committee lawyers versus the Gulf Coast Claims Facility lawyers - proceeded on parallel tracks until last Friday when BP announced a settlement in principle with the Steering Committee - just days before the case was set to go to trial on March 5.

As part of the deal, BP announced plans to transition the Feinberg facility to a new structure and to use the $13.9 billion remaining in the fund to pay the estimated $7.8 billion cost of the settlement. Under the deal, victims who had not yet had their claims heard by Feinberg would be able to either appear before the new administrators, or opt out of the settlement and pursue claims against BP independently.

The settlement announcement, which needs to be finalized by April 16, immediately exacerbated a rift between the two plaintiffs' camps. Steering Committee lawyers sought to position the development as a positive one for victims who were planning to file claims with Feinberg.

Claimants "will generally be paid greater benefits" than they received from Feinberg, lawyers Stephen Herman and James Roy of the Steering Committee said in a statement. Herman also sought to position the committee as not taking fees "out of the claimant's pocket" and stated that BP has agreed to pay their legal fees on top of what is paid to victims.

But lawyers who had been pursuing their clients' claims with Feinberg, and who were not part of the settlement discussions with BP, worry that Steering Committee attorneys will receive fees that do not belong to them.

"We have clients who have offers on the table that have either been accepted or are probably going to accept," said attorney Tony Buzbee, who said he has settled about $150 million worth of claims. "If we accept these offers, lawyers who had nothing to do with it will claim they're entitled to some of the money."

Daniel Becnel Jr, another attorney with clients who have not received payments from the Feinberg-administered fund, also criticized the settlement as a money grab.

"This is all about fees," said Becnel, who has become an outspoken critic of the Steering Committee after he was not named to the body.

The proposed settlement returns the locus of power to the Steering Committee. Over the last several months, as lawyers who appeared before Feinberg collected hefty fees, lawyers on the court cases sat largely empty-handed. Finally last year, the court case lawyers asked presiding judge Carl Barbier to hold back 6 percent of Feinberg's settlements for "common benefit fees" to be paid to the Steering Committee. The Committee argued it deserved the fees because its work had benefited fund claimants.

Barbier initially granted the Steering Committee request, but amended his order in January to exempt settlements to fund claimants who never had or did not currently have claims pending in the multi-district litigation.

Now, power is back in the hands of the Steering Committee, which has left attorneys who had been pursuing claims with Feinberg feeling like the rug has been pulled out beneath them.

"I just feel like the interests of a lot of people are being shut out," said Buzbee.

Tuesday, March 6, 2012

North Carolina has paid several times as much on outside attorneys hired by Republican lawmakers for advice on new district boundaries and defending them as similar counsel was paid in the previous redistricting round, according to records and invoices.

Responding to public records requests by multiple media outlets, the General Assembly released documents showing the state has paid $695,049 since March 2011 to two firms - one based in South Carolina and another in Washington.

In the redistricting litigation that began in 2001, the state paid $131,475 in similar legal expenses, according to information accumulated at the request of an attorney working for the Senate. More legal expenses are expected this year as a three-judge panel hears a pair of lawsuits challenging the districts.

The legal expenses, which ranged from $245 to $825 per hour, are giving Democrats more ammunition to criticize the GOP-penned maps that are still being challenged in state court. Democratic elected officials and their allies have sued on grounds the boundaries for the General Assembly and the congressional delegation constitutes racial gerrymandering and creates confusion for voters.

Redistricting leaders at the Legislature defended the costs in a news release. They said money was well spent because the boundaries have held up so far in court and will be used for this year's elections, avoiding even more costly litigation and potentially requiring new elections that could cost millions.

The state attorney general's office remains lead litigator defending the maps on the state's behalf in the pending lawsuits.

"Due to the diligent work of our standing legal defense team, we have not lost a case, have not had to redraw districts and have not have expensive disruptions to the election process," said a statement from Rep. David Lewis, R-Harnett, and Sen. Bob Rucho, R-Mecklenburg, chairmen of the Legislature's redistricting committees. They said the lawyers were paid "competitive rates" and that their use has provided "certainty that was lacking in the last redistricting process."

But the outside work costs, one legislative Democrat said, shows the extent of the legal efforts Republicans made to push the envelope on redistricting in 2011.

For a lower price, Republicans could "have drawn maps that would have given them a reasonable advantage of some sort and didn't victimize African-Americans by ghettoizing them into districts and also by inconveniencing voters by splitting precincts," said Rep. Grier Martin, D-Wake, the House Democrats' chief spokesman on redistricting. Instead, he said, the cost for unlawful maps "is without doubt an abuse of taxpayer dollars."

State Democratic Party Chairman David Parker said in a statement Republicans "will stop at no expense to ensure that their extreme partisan majority is locked in for years to come."

Republicans got to control the once-a-decade redrawing of the boundaries based on 2010 U.S. Census population figures because they won a majority in both the House and Senate in November 2010.

For lawyers, there are many strings attached to the word "specialist."

The American Bar Association's model rules, for instance, say a lawyer who holds himself out to be a specialist must be certified by an organization approved by the state or accredited by the ABA. The name of the organization must be identified when the lawyer, whether in advertisements or elsewhere, calls himself a specialist.

Rule 7.4 of the New York Rules of Professional Conduct is more demanding. Lawyers here must name the organization, and this disclaimer must be "prominently made":

[1] The [name of the private certifying organization] is not affiliated with any governmental authority[,] [2] Certification is not a requirement for the practice of law in the State of New York and [3] does not necessarily indicate greater competence than other attorneys experienced in this field of law.

The New York rule is also unconstitutional, according to the U.S. Court of Appeals for the Second Circuit. In an opinion Monday, the court sided with Buffalo lawyer J. Michael Hayes, who challenged the rule after the New York attorney grievance committee investigated him over his billboard advertisements and letterhead.

Hayes, who is certified by the ABA-approved National Board of Trial Advocacy, placed ads on two billboards in Buffalo in 1999 identifying himself as a specialist. They included the disclaimer in six-inch letters, one inch larger than what the federal government required for cigarette warnings on billboards.

The grievance committee questioned whether the font size satisfied the "prominently made" requirement. It also decided Hayes was required to have the 40-word disclaimer on his letterhead, since it referred to him as "board certified" (but not as a specialist).

In 2001, Hayes asked a federal judge to declare the rule unconstitutional. He lost a bench trial, but the Second Circuit, ruling Monday, found that the New York rule violates his freedom of speech and is unconstitutionally vague.

The court was OK with the first part of the disclaimer - requiring lawyers to state the certifying organization isn't affiliated with the government - but the remaining two "cannot survive First Amendment scrutiny," wrote Judge Jon Newman.

The Second Circuit also ruled that the "prominently made" language rendered the disclaimer unconstitutionally vague, since not even the grievance committee could say what it means.

"Because the prominence requirement is not clear to those who sought to enforce it against Hayes's billboards, let alone to Hayes as a lawyer of ordinary skill and intelligence attempting to comply with it, it cannot validly be enforced against him in this context," the court wrote.

Hayes, 65 years old, said he isn't advertising as heavily as he was when he filed the challenge 10 years ago. Still, he said the decision was "great for the profession" and for the public.

"It's going to give people a choice. It's going to inform the public as to which lawyers do what," he said. Hayes reckons many lawyers thought better of seeking specialization, since the rule was so onerous.

Deanne Trippi, chairman of the grievance committee, did not immediately respond to requests for comment.

Monday, March 5, 2012

The expertise of lawyers practicing in the area of workers' compensation has been a concern for many years, according to John Bagnato, the chair of the certification committee of the Pennsylvania Bar Association workers' compensation law section.

"I was approached by one of the senior labor leaders in this state, asking if there was some way to restrict the practice of workers' compensation law," Mr. Bagnato said.

Now, with the state Supreme Court's approval, the workers' compensation law section will now be providing a form of quality control as a certifying organization.

The certification is meaningful for three groups, Mr. Bagnato said: injured claimants who want meaningful representation; the workers' compensation defense community, including third-party claimants and insurance companies; and the bench of workers' compensation administrative law judges.

Workers' compensation law requires specialized knowledge, including time limits on cases, as well as knowledge of medicine because there are almost always physician witnesses on both sides addressing the causal relationship between a claimant's injury and his or her workplace activity, Mr. Bagnato said.

Certified lawyers will be able to assert to the public that they are "certified as a specialist in the practice of workers' compensation law by the Pennsylvania Bar Association's section on workers' compensation law as authorized by the Pennsylvania Supreme Court."

According to the Pennsylvania Bar Association, no other entity certifies workers' compensation lawyers in the state and the association has never before had the authority to issue certification in a particular subject area of law.

The ability for the bar association to take on the role of certifying attorneys in the area of workers' compensation came because of the U.S. Supreme Court's 1990 decision in Peel v. Attorney Registration and Disciplinary Commission of Illinois, Mr. Bagnato said.

While there are several national-based organizations approved by the Supreme Court to provide certifications in other areas of law, he said, the practice of workers' compensation is very localized to each state. "There would not be a legitimate national organization that could put together a certification program for Pennsylvania lawyers."

Testing will be four hours in length and involve two essay questions and 100 multiple-choice questions, Mr. Bagnato said.

Applicants also must establish that they are admitted to practice in Pennsylvania, have practiced law for at least five years and devote 50 percent of their practice to workers' compensation law.

The application process is expected to go into effect in the late fall.

Workers' compensation attorney Mary G. March, a member of Pietragallo Gordon Alfano Bosick & Raspanti's workers' compensation, risk management and construction practice groups, said getting the certification will be attractive to attorneys as a way to distinguish themselves in the marketplace.

"You'll probably see a third of the lawyers right off the bat take the test and start marketing themselves as specialists," Ms. March said.

Having the certification out there might be good for their clients to know that an attorney does workers' compensation all the time and is not just dabbling in this area of law, she said.

A lawyer who successfully completes the process will be certified for five years. The committee anticipates setting an application fee of up to $1,000 depending upon costs, Mr. Bagnato said. For more content like this, visit www.thelegalintelligencer.com.

Lawyers representing Latinos who accuse Maricopa County Sheriff Joe Arpaio's office of racial profiling are asking a federal judge to block Immigration and Customs Enforcement employees from being called to testify by the sheriff's lawyers at a trial.

Motions filed late Friday in the suit say ICE gave the sheriff's lawyers permission to depose five ICE employees, but the depositions were never conducted.

Lawyers for the five Latinos who sued say they were therefore unable to counter with their own questions for the ICE workers. They say Arpaio's lawyers should be barred from calling the employees to the stand.

The plaintiff's attorneys also wrote that two other ICE agents who did give depositions have no relevant testimony and also should not be called.

Those two agents told attorneys they saw no evidence of racial profiling, American Civil Liberties Union of Arizona legal director Dan Pochoda said, and the other five would likely be asked the same questions.

Pochoda said Sunday the ICE agents' testimony wouldn't be helpful for the defense because they have no direct knowledge of why Arpaio's deputies may have initially stopped vehicles. They were only involved later in the process.

"We're not worried about the testimony," Pochoda said. "There's nothing bad, because they don't have any direct knowledge that's responsive."

The lawsuit alleges Arpaio's officers based some traffic stops on the race of Hispanics in vehicles, had no probable cause to pull them over and made the stops so they could inquire about the occupants' immigration status.

Arpaio has denied the racial profiling allegations, saying people pulled over in the patrols were approached because deputies had probable cause to believe they had committed crimes and it was only afterward that deputies found many of them were illegal immigrants.

Efforts to reach Arpaio's lawyers Sunday were unsuccessful.

Arpaio already is facing an uphill battle in the suit. In December, U.S. District Judge Murray Snow barred deputies from detaining people based solely on the suspicion that they're in the country illegally.

That ruling set the stage for a possible trial in a lawsuit that ultimately could further limit Sheriff Joe Arpaio's immigration authority. The Justice Department yanked Arpaio's federal immigration powers in December.

Snow hasn't yet ruled on the ultimate question of racial profiling, but noted in December that evidence could lead a judge or jury to conclude that Arpaio's office racially profiles Latinos.

"Sheriff Arpaio has made public statements that a fact-finder could interpret as endorsing racial profiling," Snow said.

Friday's motions are a prelude for a final pre-trial conference set for March 23, when a formal trial date is expected to be set.

During his immigration patrols known as "sweeps," deputies flood an area of a city — in some cases, heavily Latino areas — over several days to seek out traffic violators and arrest other offenders. Illegal immigrants accounted for 57 percent of the 1,500 people arrested in the 20 sweeps conducted by his office since January 2008.

The sheriff's office said it doesn't discriminate against Latinos and is negotiating to resolve the allegations. But the office says it is prepared to go to court if the Justice Department files a lawsuit.

Sunday, March 4, 2012

A lawsuit challenging the governor's decision to remove a mural from the Maine Department of Labor's headquarters is politically motivated and should be dismissed, an attorney representing Gov. Paul LePage told a federal judge Thursday.

Deputy Attorney General Paul Stern argued that the governor clearly had the right to remove the pro-labor mural from the lobby of the office building in Augusta last year. The state hired the artist, paid for the mural and helped to direct its content, he said.

"If this is not government speech, I'm not sure what can be," Stern said after the 90-minute proceeding in U.S. District Court.

Attorney Jonathan Beal countered that the plaintiffs did not sue the governor for political reasons, but because of his decision to ignore state rules for how state works of art are to be moved or removed from certain public spaces.

He said LePage's unilateral decision to remove the mural on a Saturday, after public protests, prompted the lawsuit, in which the plaintiffs claim that LePage violated the First Amendment.

"I resent (the state) saying this is a political witch hunt or campaign," Beal said.

Judge John Woodcock Jr. heard oral arguments Thursday in the case brought against LePage last year by two union officials and three artists.

The plaintiffs are hoping for a jury trial on the removal of the mural painted by Judy Taylor of Tremont. The state paid Taylor $60,000 for the 11-panel mural, which went up in a small waiting room at the Department of Labor in 2008.

Woodcock's decision is expected in the coming weeks.

If he determines that LePage's action was government speech, the case will likely be dismissed, because the U.S. Supreme Court has ruled that "when the government speaks, it is not subject to the Free Speech Clause of the First Amendment," according to court documents.

Part of Beal's case rests on his ability to convince Woodcock that people who saw the mural in the building's lobby would have known it was a work of art, not a message from the state. Although Taylor responded to a request for proposals that outlined the type of mural the state wanted, she used broad artistic license in creating her work, he said.

"If the artist is expressing her ideas, even if it is paid for by the state, it is not government speech," he said.

Arguing for the state, Stern told Woodcock that if the case goes to a jury trial, it will give political parties in Maine a new way to try to discredit each other.

"If the governor of the state of Maine is called as a witness, any card-carrying politician is going to use this scheme to try to discredit this governor and every other governor in the state of Maine," he said. "If we're going to have a trial every time a state or federal official says something, puts up a monument, takes down a monument, you're going to be very busy."

Woodcock peppered both attorneys with questions throughout the proceeding, pushing them to stay on point and not letting them stray into long arguments.

"As I understand it, the plaintiffs' main point is that the question, narrowly defined, comes down to, whose art is it?" Woodcock said.

"If it's the government's art, there's one form of analysis. If it's the artist's, it's another," he said. "The First Amendment prohibits government from abridging private speech. But it does not prohibit the government from speaking for itself, or not speaking."

Three judges seemed unimpressed Wednesday with arguments that the First Amendment rights of a civil rights lawyer convicted of aiding a terrorist organization were violated when her prison sentence was quadrupled after she said she could serve the time "standing on my head."

"I'm not sure freedom of speech means absolute immunity from the consequences of what you have to say," said Judge Robert Sack.

The 2nd U.S. Circuit Court of Appeals panel that listened to oral arguments contained the same judges who ordered disbarred attorney Lynne Stewart resentenced in 2009 when they said they had "serious doubts" that her original sentence of 2 1/4 years was sufficient. The trial judge obliged, sending her away for 10 years as he noted comments she made after her first sentencing and concluded that she had committed perjury multiple times when she testified at her trial.

Stewart was convicted in February 2005 of conspiracy, providing material support to terrorists, defrauding the government and making false statements. After she was first sentenced in 2006, she said in an impromptu news conference in front of the Manhattan courthouse that two years in prison was nothing to look forward to, but she could "do that standing on my head."

Attorney Herald Fahringer, arguing for Stewart, cited the quote as he argued it violated the First Amendment to enhance her sentence because of her reaction to it.

Sack, though, said he wasn't concerned so much with that statement but rather with others she made in an interview with the Democracy Now network. She responded to a question about whether she regretted her conduct in the case by saying she had "no criminal intent whatsoever" and she'd like to think she would do things the same: "I would do it again. I might handle it a little differently, but I would do it again."

Sack said those comments "reflected a lack of remorse" and provided a "compelling argument" to support the longer prison sentence.

Fahringer responded that her statements reflected her belief that she would have continued to take unpopular clients and cannot be used to enhance her prison time because they were ambiguous and open for interpretation.

"If it is ambiguous, you have to give the speaker the benefit of the doubt because of the First Amendment," he said.

Judge Guido Calabresi said Stewart's statements could be read to mean what Fahringer was saying "or as a lack of remorse" but, either way, might be within the discretion of the sentencing judge to decide how they should be interpreted. To find otherwise, he added, would force the appeals court to require new sentences in many cases where judges rely on their judgment of statements or the demeanor of the defendant to decide how much prison time is justified.

The First Amendment argument was acknowledged by Calabresi when he asked Assistant U.S. Attorney Andrew S. Dember if a defendant can celebrate a lenient sentence without worrying about ramifications later.

"Can't somebody say: 'I lucked out'?" he asked. "What if she said: 'Boy, I was lucky to get the sentence this low. A lefty like me usually gets hit hard.'"

Dember said the sentencing judge doesn't just look at the statement but observes the defendant's demeanor and overall conduct. He noted that the judge had watched a videotape of Stewart outside court after the first sentencing.

Calabresi also asked Dember if the sentencing judge erred by failing to take into consideration that the government didn't prosecute two other lawyers who also represented Stewart's client, Sheik Omar Abdel-Rahman. The lawyers included former Attorney General Ramsey Clark.

"Ramsey Clark, a very distinguished lawyer, was not even charged," Calabresi said.

"The two other attorneys refused to do what she did. They had the opportunity to do it, discussed it, but didn't do it," Dember said.

Stewart was convicted of letting Abdel-Rahman communicate with a man who relayed messages to senior members of an Egyptian-based terrorist organization. Abdel-Rahman is serving a life sentence after he was convicted in 1995 in conspiracies to blow up New York City landmarks and assassinate former Egyptian President Hosni Mubarak.

Saturday, March 3, 2012

In a rare showing of public criticism, the Weber County Attorney blasted one of the attorneys for accused cop-killer Matthew David Stewart, claiming the lawyer was "playing games" with the court.

"There's a lot of misinformation and misrepresentations that have been made," Weber County Attorney Dee Smith said at a news conference on Wednesday.

Tension filled the room as the attorney in question, Randy Richards, walked into the room midway through Smith's remarks. He sat down and took notes alongside reporters.

Smith was rebutting claims that his office has refused to share information with defense attorneys. Stewart is charged with killing Weber-Morgan Narcotics Strike Force Agent Jared Francom and wounding five other officers on Jan. 4 as they attempted to serve a drug-related search warrant. He faces the death penalty, if convicted.

The fight is over evidence in the death penalty case against Stewart. In legal filings, Richards has complained that he is not getting discovery in the case to which he is entitled. A recent filing has also implied that police and prosecutors might destroy evidence in the high-profile case.

"When it reaches the point that the public is unable to have confidence in the judicial system, as far as I'm concerned, that's where we've crossed the line," Smith told reporters.

Prosecutors contend that Richards isn't actually Stewart's defense attorney. He signed on shortly after Stewart's arrest, but Stewart now claims he cannot afford an attorney. The court has appointed two public defenders, but Richards is not leaving the case. Richards told FOX 13 he was Stewart's "attorney of choice," but he refused to say if he was staying on the case for free or if someone would pay his bills.

Smith said the Weber County Attorney's Office has shared information with Stewart's taxpayer-funded attorneys. Some of that information has found its way to Richards, the defense lawyer conceded.

Richards bolted from the room after Smith ended his remarks, declining to say much to reporters.

"I don't play games in court," he said. "I file motions. I don't file frivolous motions. I file motions that are accurate. That's all I'm going to say."

The pending motions filed by Stewart's defense team will be heard by a judge in Ogden's 2nd District Court, although no date has yet been set.

Weber County prosecutors recently filed to seize Stewart's Jackson Ave. home for forfeiture, claiming they found 16 marijuana plants inside the home. Smith said an underlying reason for the action is to preserve evidence for both prosecution and defense as the case moves forward.

A series of investigations remain into the circumstances surrounding the shooting of the six police officers. The Weber County Attorney confirmed that his office has concluded its own investigation into whether the police acted appropriately.

"I can say that there are no legal concerns. Beyond that I'm not going to get into the facts of the case," Smith said.

They still fight like cats and dogs in divorce court. But more and more they are fighting about cats and dogs.

Custody cases involving pets are on the rise across the country.

In a 2006 survey by the 1,600-member American Academy of Matrimonial Lawyers, a quarter of respondents said pet custody cases had increased noticeably since 2001. The academy is due for another survey, but there is no doubt such cases have grown steadily since then, said Ken Altshuler of Portland, Maine, a divorce attorney and AAML president.

If there is a child involved in a divorce, many judges will keep the pet with the child, attorneys said.

"But what do you do when the pet is the child?" Altshuler asked.

Breakups in same-sex marriages, civil unions and domestic partnerships are among reasons pet custody fights have become more common, attorneys said.

Pet custody cases have grown as much as 15 percent in his office over the last five years, said attorney David Pisarra of Santa Monica.

He is his own best example. He shares custody of 8-year-old Dudley, a longhaired standard black-and-tan dachshund, with his ex, who has remarried and introduced a step-dog to Dudley.

Pet consultant Steven May hired Pisarra six years ago to handle his divorce. Besides a daughter, May and his ex worked out custody of three dogs, two cats and Tequila the parrot.

Pisarra and May became good friends and often take their dogs for walks in Santa Monica. They also teamed up last year to write a book about co-parenting a pet with an ex titled "What About Wally?"

Pets are considered property in every state in the country. For years, they have been divvied up like furniture during divorce proceedings. But times are changing.

"Judges are viewing them more akin to children than dining room sets. They are recognizing that people have an emotional attachment to their animals," Altshuler said.

"There is a shifting consciousness," Pisarra said. "Pets are being given greater consideration under the law."

More people have pets than ever before and they consider them part of the family rather than possessions, said Silvana Raso, a family law attorney with the Englewood Cliffs, N.J., law firm of Schepisi & McLaughlin.

"People are not embarrassed to fight for custody of a pet today. In the past they might have shied away from it because society didn't really accept a pet as anything other than an accessory to your life," she said.

When Pisarra and Jay Redd (who wrote an introduction in the book) split up, they agreed to share Dudley.

"There is no law that recognizes visitation with an animal," Raso said, so couples have to work it out themselves.

Reaching a pet custody agreement without a lot of help from attorneys and judges will save money, Raso said. Divorces can cost $1,000 and be resolved quickly or cost millions and take years.

Pet decisions are often more agonizing to make than those about mortgages, credit card debt or student loans, Raso said. But if they can be resolved, the rest usually goes smoother.

After their 2006 breakup, Pisarra and Redd worked out shared custody, long-distance visitation and a new family (including a beagle) in Dudley's life, Pisarra said. Today, they live in the same city, so visitation no longer includes flight time.

The two have a plan for everyday, vacation and holiday schedules, travel arrangements, doggie daycare, boarding, food, treats, grooming, vet care, moving and end-of-life decisions. They split costs and sometimes, with things like toys, leashes and dog bowls, they buy two of each so Dudley has one at each home.

May and his wife Nina (who also wrote an introduction for the book) separated six years ago after 16 years of marriage. "Everything was fresh and raw. It was not easy."

It's taken time, but he and his ex live about two miles apart in West Los Angeles now and sharing custody of their daughter and pets is easy, he said. To make it work, "you learn the true meaning of concession," May said.

The three dogs the couple had then have died, but Winnie, his 3-year-old Cavalier King Charles spaniel, is very much like a family pet, said May, a consultant to veterinary and other pet-related companies.

Most of the time, custody battles grow out of love. But there are cases rooted in spite or retaliation.

Pisarra represented a man whose estranged wife had the family's two German shepherds euthanized. "They were his running dogs. It was really cruel and he had no recourse," he said.

In years past, pets could not be protected in domestic violence restraining orders in any state. But because abusers can use pets to threaten victims, maybe even kill the animals, the laws have changed in states like Maine, New York, California and Illinois. Other states are looking into changes. And there will be changes in other laws too, Altshuler predicted.

He believes there will one day be statutes for pets, much like there are for children, giving judges guidelines to rule by.